Dr. Bindu George vs Aquinas College on 24 February, 2021

[Cites 11, Cited by 0]

Kerala High Court

Dr. Bindu George vs Aquinas College on 24 February, 2021

Equivalent citations: AIRONLINE 2021 KER 671

1. The petitioner was working as Professor and Head of the Department of Economics in the 1 st respondent's college. She was issued with Exhibit P1 show cause notice on 6.3.2020. The petitioner submitted Exhibit P2 reply denying the allegations. It is stated that the petitioner had submitted Exhibit P3 complaint on 5.3.2020 before the Principal stating that Sri.Vijo M Joy had abused her on 28.2.2020. It was with regard to the very same incident that Exhibit P1 was issued. The reply was considered and the petitioner was issued with Exhibit P4 letter dated 25.5.2020 by the Manager expressing disapproval of her impolite ways and threatening disciplinary action if the petitioner does not behave with respect to college authorities, fellow teachers, staff and students in future. It was stated in Exhibit P4 that correspondence in the matter was closed. On the same day, the petitioner forwarded a further reply as Exhibit P5, seeking a copy of the complaint preferred by Viju M Joy and complaining of the stigmatic findings in Exhibit P5. Thereafter, Exhibit P6 order was passed W.P.(C).No.28570/2020 3 on 2.7.2020 recalling the letter dated 25.5.2020 and deciding to take de novo proceedings against the petitioner.

2. The petitioner was placed under suspension with effect from 2.7.2020, pending enquiry. The petitioner approached this Court filing W.P.(C).No.13641/2020. Though this Court did not interfere with the order of suspension, there was a direction to finalise the disciplinary proceedings within one month. The judgment of this Court declining interference with the order of suspension was upheld by a Division Bench as well. Thereafter, an IA was moved for extension of time for completing the disciplinary proceedings and Exhibit P7 order was passed by this Court extending the time upto 4.10.2020. The petitioner was directed to be reinstated on 5.10.2020. It is submitted that Exhibit P8 memo of charges dated 30.7.2020 was issued to the petitioner by the 4 th respondent on 4.8.2020. The petitioner submitted Exhibit P9 explanation. An enquiry officer was appointed by Exhibit P10. Thereafter, eight witnesses were examined in the enquiry and the 4 th respondent, who is the Manager of the college and the W.P.(C).No.28570/2020 4 disciplinary authority was the first witness. The petitioner also examined five witnesses. By Exhibit P11 dated 7.12.2020, the petitioner has now been required to show cause why the penalty of compulsory retirement from service shall not be imposed on her.

3. Exhibit P11 is challenged on the ground that it is completely illegal on various grounds. It is submitted that the notice has been issued without forwarding a copy of the enquiry report to the petitioner. It is submitted that a reading of Exhibit P11 would show that the enquiry report has been accepted without putting it to the petitioner and a decision has also been taken to inflict the punishment of compulsory retirement. It is, therefore, contended that the issuance of the show cause notice is a farce and an empty formality and that the action of the respondents is, therefore, clearly vitiated. Further, it is contended that the Manager, who had assumed the role of the disciplinary authority and had issued the charge memo to the petitioner, was himself the 1st witness in the enquiry against the petitioner and that the said situation vitiates the entire W.P.(C).No.28570/2020 5 disciplinary proceedings against the petitioner. It is stated that a reading of Exhibit P8, memo of charges and Exhibit P10 proceedings appointing an enquiry officer would clearly show that the Manager had acted in his capacity as the disciplinary authority and that the entire proceedings stood clearly vitiated. The learned counsel for the petitioner relies on the decision of the Apex Court in Punjab National Bank and others v. Kunj Behari Misra [(1998) 7 SCC 84], Rattan Lal Sharma v. Dr.Hari Ram (Co-education) Higher Secondary School [(1993) 4 SCC 10], Union of India and another v. Kunisetty Satyanarayana, [(2006) 12 SCC 28], Mohd.Yunus Khan v. State of Uttar Pradesh and others [(2010) 10 SCC 539].

4. It is further submitted that the question relating to alternate remedy is also settled, since the respondent college is a minority educational institution, the petitioner cannot approach the tribunal as well. In support of this proposition the petitioner relies on Manager, St.Josephs Training College v. University Appellate Tribunal [1980 KLT 67(F.B)] W.P.(C).No.28570/2020 6 and Lilly Kurian v. University Appellate Tribunal [1997 (1) KLT 722 SC].

5. A counter affidavit has been placed on record by respondents 1,2 and 4. It is contended that the show cause notice was issued on the basis of grave charges proved in a detailed enquiry conducted by an independent officer and the petitioner has no grievance against the same. It is stated that the petitioner has an effective alternate remedy under Section 63(6) of the Mahatma Universities Act. In support of the contention that a writ petition would not be maintainable when there is an efficacious alternate remedy, the learned Senior Counsel relies on the decisions of the Apex Court in Special Director and another v. Mohd.Ghulam Ghouse and another [(2004) 3 SCC 440], Union of India and another v. Kunisetty Satyanarayana [(2006) 12 SCC 28] etc.

6. It is contended that the opportunity to show cause against an enquiry report is required only where the disciplinary authority disagrees with the findings in the enquiry report. W.P.(C).No.28570/2020 7 The decisions in Managing Director, ECIL v. B.Karunakar [(1993) 4 SCC 727] and Punjab National Bank and others v. Kunj Behari Misra [(1998) 7 SCC 84], are relied on in support of this contention.

7. It is submitted that the 4th respondent being a witness in the enquiry does not vitiate the proceedings because it is the educational agency as the disciplinary authority that has accepted the enquiry report and issued Exhibit P11.

8. Further, the learned Senior Counsel also relies on a decision of a Division Bench of this Court in CRP No.882 of 2005 in which the decisions relied on by the learned counsel for the petitioner in Lilly Kurian v. University Appellate Tribunal [1997 (1) KLT 722 SC and Manager, St.Josephs Training College v. University Appellate Tribunal [1980 KLT 67(F.B) had been considered and it was found that an appeal would be maintainable under Section 63(6) of the Mahatma Gandhi Universities Act against an order in disciplinary proceedings passed even by a minority educational institution. W.P.(C).No.28570/2020 8

9. I have considered the contentions advanced. The initial contention with regard to maintainability of the writ petition is being dealt with first. Section 63(6) of the Mahatma Gandhi Universities Act reads as follows:-

"63. Disciplinary powers of Educational Agency over teachers of Private Colleges.

xxx xxx xxx xxx (6). Any teacher aggrieved by an order imposing on him any of the following penalties, namely:-

xxx xxxx xxx may, within sixty days from the date on which a copy of such order is served on him, appeal to the Appellate Tribunal on any one or more of the following grounds, namely:-

(i). that there is want of good faith in passing the order;

(ii). that the order is intended to victimize the appellant;

(iii). that in passing the order, the educational agency has been guilty or a basic error or violation of the principles of natural justice;

(iv). that the order is not based on any material or is perverse:

Provided that the appellate Tribunal may admit an appeal presented after the expiration of the said period of sixty days if it is satisfied that the appellant had sufficient cause for not presenting the appeal within that period. "

10.A Division Bench of this Court in CRP No.882 of 2015 considered the decisions of the Apex Court and the Full Bench of this Court as well as the provisions of Section 63(6) of the Mahatma Gandhi University Act and held as follows:- W.P.(C).No.28570/2020 9

"Such restriction on the nature of punishments which could be appealed against and the grounds to which that right of appeal is restricted clearly lays down statutory guidance, restrictions and norms for invoking the appellate power and exercise of that appellate power by the Appellate Tribunal. That being so, the vice noted in provisions which give uncanalised and unguided appellate power to the Appellate Tribunals under the University laws ought to stand regulated when a matter before it relates to a linguistic or religious minority entitled to protection under Article 30(1). In our view, such reading down of the provisions in sub-section 7 of section 60 of the Calicut University Act and regulating the exercise of appellate power in cases where the management is an institution belonging to a religious or linguistic minority denomination would reconcile and satisfy the constitutional requirement to enforce relevant statutory provisions in accordance with the Constitution. Such restricted application of sub-section 7 of section 60 of the Calicut University Act would take away, the impairment of the religious and linguistic minority establishments' entitlements under Article 30(1) of the Constitution. This balancing of rights, while applying the scope of appellate jurisdiction under sub-section 7 of section 60 of the Calicut University Act, is necessary to ensure that the teacher, who is also a citizen of India, is not left high and dry, but gets the support of the adjudicatory process through a Tribunal which is nothing but the substitution of a seat of judicial authority. This would facilitate rendering justice between the teacher and the establishment in relation to a dispute, which would otherwise be a service dispute where the teacher should have remedies within the limits of the Constitution and the laws. Therefore, in so far as the provisions in W.P.(C).No.28570/2020 10 Sub-section 7 of Section 60 of the Calicut University Act not having been declared unconstitutional, void and inoperative by any competent court, we are of the view that the said provision has to be applied and jurisdiction of that Tribunal ought to be regulated to the extent noted above, that is to say, to be in conformity with the restrictions similar to those which are available in Section 63(6) of the Mahatma Gandhi University Act as quoted above."

11.The provision of preferring an appeal, therefore, is specifically against an order imposing any of the penalties on any of the four grounds mentioned therein. In the instant case, the petitioner is not challenging any order imposing penalty. It is her contention that the show cause notice issued to her without providing her with a copy of the enquiry report and deciding to accept the findings in the enquiry and further deciding to inflict a punishment on her is per se illegal.

12.In a case like the present one where the petitioner has approached this Court challenging the show cause notice and where this Court has found it fit to pass an interim order interdicting further proceedings to say that the petitioner should wait till an order is passed against her and then approach the Appellate Tribunal even if there is a clear W.P.(C).No.28570/2020 11 infraction of the principles of natural justice is a legally unacceptable proposition.

13.It may be true that the errors alleged by the petitioner in the conduct of the enquiry even including the allegation that the 4th respondent, who had served the memo of charges on the petitioner, had figured as a witness in the enquiry against her, are capable of being raised in a challenge against any order of penalty which is ultimately issued to the petitioner under Section 63(6) of the Mahatma Gandhi University Act. However, since a clear infraction of procedure is alleged by the petitioner, the said issue is liable to be considered by this Court. I, therefore, find that the writ petition is maintainable.

14.The Apex Court in Mohammed Ramzan Khan's case had specifically considered the issue of serving of the copy of the enquiry report. It was held that the principles of natural justice involved in the procedure for imposition of penalties included a proper opportunity to the delinquent employee to explain his conduct. Therefore, it was held that a copy of the W.P.(C).No.28570/2020 12 enquiry report was liable to be served on the employee and the explanations of the delinquent employee to the findings in the enquiry are liable to be considered before it is accepted. It is true that the constitutional provisions underwent an amendment with the Constitution 42 nd amendment. However, the position that a full opportunity has to be given to the delinquent employee to explain his conduct before an order of penalty is imposed remains without change. In ECIL v. B. Karunakar [(1993) 4 SCC 727] the Apex Court again considered the issue and held that the employee is entitled to a full opportunity in the disciplinary proceedings and a copy of the enquiry report is also to be forwarded to the employee so as to enable him/her to object to the findings therein.

15.In Punjab National Bank and others v. Kunj Behari Misra [(1998) 7 SCC 84] it was held in paragraphs 16 as follows:

"In Karunakar case' the question arose whether after the 42 nd Amendment of the Constitution, when the enquiry officer was other than a disciplinary authority, was the delinquent employee entitled to a copy of the enquiry report of the enquiry officer before the disciplinary authority takes decision on the question of guilt of the delinquent. It W.P.(C).No.28570/2020 13 was sought to be contended in that case that as the right to show cause against the penalty proposed to be levied had been taken away by the 42nd Amendment, therefore, there was no necessity to give to the delinquent a copy of the enquiry report before the disciplinary authority took the final decision as to whether to impose a penalty or not. Explaining the effect of the 42nd Amendment the Constitution Bench at p.755 observed that: (SCC para 28) "All that has happened after the Forty-second Amendment of the Constitution is to advance the point of time at which the representation of the employee against the enquiry officer's report would be considered. Now, the disciplinary authority has to consider the representation of the employee against the report before it arrives at its conclusion with regard to his guilt or innocence of the charges."

The Court explained that the disciplinary proceedings break into two stages. The first stage ends when the disciplinary authority arrives at its conclusions on the basis of the evidence, the enquiry officer's report and the delinquent employee's reply to it. The second stage begins when the disciplinary authority decides to impose penalty on the basis of its conclusions. It is the second right which was taken away by the 42nd Amendment but the night of the charged officer to receive the report of the enquiry officer was an essential part of the first stage itself."

16.Thereafter after referring to the specific findings in ECIL v. B. Karunakar case it was held by the Apex Court in Paragraph 17 as follows:-

"These observations are clearly in tune with the observations in Bimal mar Pandit case quoted earlier and would be applicable at W.P.(C).No.28570/2020 14 the first stage self. The aforesaid passages clearly bring out the necessity of the authority which is to finally record an adverse finding to give a hearing to the delinquent officer. If the enquiry officer had given an adverse finding, as per Karunakar case the first stage required an opportunity to be given to the employee to represent to the disciplinary authority, even when an earlier opportunity had been granted to them by the enquiry officer. It will not stand to reason that when the finding in favour of the delinquent officers is proposed to be overturned by the disciplinary authority then no opportunity should be granted. The first stage of the enquiry is not completed till the disciplinary authority has recorded its findings. The principles of natural justice would demand that the authority which proposes to decide against the delinquent officer must give him a hearing. When the enquiring officer holds the charges to be proved, then that report has to be given to the delinquent officer who can make a representation before the disciplinary authority takes further action which may be prejudicial to the delinquent officer. When, like in the present case, the enquiry report is in favour of the delinquent officer but the disciplinary authority proposes to differ with such conclusions, then that authority which is deciding against the delinquent officer must give him an opportunity of being heard for otherwise he would be condemned unheard. In departmental proceedings, what is of ultimate importance is the finding of the disciplinary authority."

17.The Apex Court in the decision in Mohd.Yunus Khan v. State of Uttar Pradesh and others [(2010) 10 SCC 539] had W.P.(C).No.28570/2020 15 specifically held that the disciplinary authority cannot act whimsically or arbitrarily in the conduct of disciplinary proceedings.

18.The contention that no prejudice has been caused by the petitioner by the non-supply of the enquiry report cannot be accepted for the reason that disciplinary authority has obviously decided to accept the report of the enquiry and has considered the findings therein to quite a great extent. The petitioner, who does not have a copy of the enquiry report, is therefore seriously handicapped in asmuch as she is unable to answer the findings in the enquiry without a copy of the report made available to her.

19.It is trite law that any rule framed or disciplinary proceedings initiated by any public/statutory authority is to be in consonance with the broad principles of compliance with natural justice and a public servant cannot be inflicted with punishment at the whims and fancies of the employer. W.P.(C).No.28570/2020 16

20.In the instant case, the petitioner has specifically raised an allegation that the copy of the enquiry report was not forwarded to her. No denial is forthcoming on this point in the counter affidavit filed on behalf of the respondent as well. A reading of Exhibit P11 would go to show that the enquiry report has been considered threadbare by the disciplinary authority and a decision has been taken to inflict punishment of compulsory retirement on the petitioner. The wording in Exhibit P11 is to the effect that the decision to inflict the punishment is tentative. However, a reading of Exhibit P11 in its entirety would show that the decision to accept the enquiry report and the findings recorded therein against the petitioner is final and that the disciplinary authority has made up its mind with regard to the fact that the petitioner is guilty. This, according to me, is not what is contemplated in a show cause notice to be issued after conduct of an enquiry against the delinquent officer. The findings in the enquiry ought to be put to the petitioner and the employee should be given an opportunity to explain the findings or to contradict them. The contentions of the employee with regard to any procedural W.P.(C).No.28570/2020 17 irregularities in the conduct of the enquiry is also a matter which is liable to be considered by the disciplinary authority while considering the acceptance of the enquiry report against the employee. The contention of the learned Senior Counsel appearing for the respondents that the copy of the enquiry report is liable to be served on the petitioner only if there is a proposal to depart from any of the findings in the enquiry, is completely unacceptable.

21.In the above circumstances, I am of the opinion that the contention of the respondents that this Court ought not to go into the legality of the disciplinary proceedings at an intermediate stage cannot be accepted. It is indeed true that where a statutory appeal is provided from an order imposing penalty, all questions with regard to the illegality or impropriety of the proceedings can be raised in such appeal and this Court normally would not interfere at the stage of issuance of a notice to show cause against the proposed penalty. However, the question of non-supply of the copy of the enquiry report and the acceptance of the findings in the W.P.(C).No.28570/2020 18 enquiry without such a report being served on the petitioner, according to me, is fatal to the proceedings and deserves intervention of this Court at that stage itself. To permit a flawed proceedings to go on and to relegate the petitioner to a statutory appeal without interfering at the stage when the procedural illegality can be rectified would result in a miscarriage of justice.

22.In the above view of the matter, I find that Exhibit P11 show cause notice issued to the petitioner without forwarding a copy of the enquiry report is legally unsustainable. Exhibit P11 is set aside. There will be a direction to respondents 1,2 and 4 to serve a copy of the enquiry report on the petitioner and to require her to submit her explanation on the same. The petitioner's explanation to the enquiry report shall also be considered and an appropriate decision shall be taken as to the legality of the enquiry and the proposed punishment, if any. Necessary shall be done by the disciplinary authority within a period of three weeks from the date of receipt of a copy of this judgment. The petitioner will be free to approach W.P.(C).No.28570/2020 19 the Appellate Tribunal against any order of penalty imposed on her. All other contentions of the parties with regard to the legality of the proceedings are left open.

The writ petition is ordered accordingly.

Sd/-

Anu Sivaraman, Judge sj APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE NOTICE ISSUED BY THE 1ST RESPONDENT DATED 06/03/2020.

EXHIBIT P2 TRUE COPY OF THE EXPLANATION SUBMITTED BY THE PETITIONER DATED 12/03/2020.

EXHIBIT P3 TRUE COPY OF THE COMPLAINT FILED BY THE PETITIONER THROUGH EMAIL DATED 05/03/2020.

EXHIBIT P4 TRUE COPY OF THE COMMUNICATION ISSUED BY THE 1ST RESPONDENT DATED 25/05/2020.

EXHIBIT P5 TRUE COPY OF THE COMMUNICATION SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT DATED 22/06/2020.

EXHIBIT P6 TRUE COPY OF THE ORDER NO.AC/TS/DP/2020 DATED 2/7/2020 ISSUED BY THE 1ST RESPONDENT.

EXHIBIT P7 TRUE COPY OF THE ORDER IN I.A.NO.3/2020 IN WP(C) 13641 OF 2020 DATED 30/9/2020.

EXHIBIT P8 TRUE COPY OF THE MEMO OF CHARGES DATED 30/7/2020 ISSUED TO THE PETITIONER ON 4/8/2020.

EXHIBIT P9 TRUE COPY OF THE EXPLANATION SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 26/8/2020.

EXHIBIT P10 TRUE COPY OF THE PROCEEDINGS INITIATED BY THE 1ST RESPONDENT DATED 14/9/2020.

EXHIBIT P11 TRUE COPY OF THE SHOW-CAUSE NOTICE ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER DATED 7/12/2020.

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